THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT") AND THE SECURITIES LAWS OF ANY STATE. THE NOTE HAS BEEN
ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, ASSIGNED, MADE SUBJECT TO A SECURITY INTEREST,
PLEDGED, HYPOTHECAT-ED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL
REGIS-TERED UNDER THE 1933 ACT, OR AN OPINION OF COUNSEL SATISFACTORY TO NETLIVE
COMMUNICATIONS INC. IS RECEIVED THAT REGISTRATION IS NOT REQUIRED UNDER SUCH
1933 ACT OR SUCH STATE SECURITIES LAWS.
GLOBAL REALTY DEVELOPMENT CORP
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Promissory Note
AUAP - Note 1 AUD$465,000
Global Realty Development Corp, a Delaware corporation (the "Company"), for
value received, hereby promises to pay to the order of Dominion Estates Pty Ltd
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(administrator appointed) (ACN 072 221 375) (the "Payee"), of c/- Xxxxx
Xxxxxxx-Xxxxx, Deloitte, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000, fourteen (14)
days from the date hereof or as otherwise may be agreed to between the parties
in writing pursuant to the Deed of Company Arrangement ("DOCA"), the principal
sum of FOUR HUNDRED SIXTY-FIVE THOUSAND AUSTRALIAN DOLLARS (AUD$465,000) (or
such lesser principal amount as may then be outstanding). Notwithstanding the
forego-ing, the principal amount of the Note may be prepaid by the Company, in
whole or in part, without premium or penalty, at any time. In the event that the
Note is not paid within the prescribed period of the DOCA, the Note shall bear
interest from and after such date at the rate of 10% per annum.
If the Company shall fail to make a payment of principal when due; or shall make
an assignment for the benefit of creditors, file a petition in bankruptcy, be
adjudicated insolvent or bankrupt, suffer an order for relief under any federal
bankrupt-cy law, petition or apply to any tribunal for the appointment of a
custodian, receiver or any trustee for the Company or any substan-tial part of
its assets, or shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or if
there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against the Company, which remains
undismissed for a period of thirty (30) days or more; or if the Company, by any
act or omission shall indicate consent to, approval of or acquiescence in any
such petition, application or proceeding or the appointment of, a custodian,
receiver or any trustee for all or any substantial part of its properties, or if
the Company shall suffer such custodianship, receivership, or trusteeship to
continue undischarged for a period of thirty (30) days or more, or the Company
violates any term or provision of this Note and same remains uncured for a
period of 30 days after written notice thereof by any holder of this Note, then
and in any such event (each such event, an "Event of Default"), the outstanding
principal amount of this Note shall be and become immediately due and payable.
1
Payments of principal are to be made in lawful money of the United States of
America at the principal office of the Payee.
1. Restrictions on Transfer
The holder acknowledges that he has been advised by the Company that
this Note has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), that the Note is being issued, on the basis
of the statutory exemption provided by Section 4(2) of the Securities Act
relating to transactions by an issuer not involving any public offering,
and that the Company's reliance upon this statutory exemption is based in
part upon the representations made by the holder in the holder's
Subscription Agreement. The holder acknowledges that he has been informed
by the Company of, or is otherwise familiar with, the nature of the
limitations imposed by the Securities Act and the rules and regulations
thereunder on the transfer of securities. In particu-lar, the holder agrees
that no sale, assignment, hypothecation or transfer of the Note shall be
valid or effective, and the Company shall not be required to give any
effect to any such sale, assignment, hypothecation, transfer or other
disposition, unless (i) the sale, assignment, hypothecation, transfer or
other disposition of the Note is registered under the Securities Act,
provided, that the Company has no obligation or intention to so register
the Note in connection herewith, or (ii) the Note is sold, assigned,
hypothecated, transferred or otherwise disposed of in accordance with all
the requirements and limitations of Rule 144 under the Securities Act, or
such sale, assignment, or transfer is otherwise exempt from registration
under the Securities Act.
2. Covenants of Company
(a) The Company covenants and agrees that, so long as this Note
shall be outstanding, it will:
(i) Promptly pay and discharge all lawful taxes,
assessments and governmental charges or levies imposed
upon the Company or upon its income and profits, or upon
any of its property, before the same shall become in
default, as well as all lawful claims for labor,
materials and supplies which, if unpaid, might become a
lien or charge upon such properties or any part thereof,
except where the failure to so pay would not have a
material effect on the Company; provided, however, that
the Company shall not be required to pay and discharge
any such tax, assess-ment, charge, levy or claim so long
as the validity thereof shall be contested in good faith
by appropriate proceedings, and the Company shall set
aside on its books adequate reserves with respect to any
such tax, assessment, charge, levy or claim so
contested.
(ii) Do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights and franchises and comply with all
material laws applicable to the Company as its counsel
may advise;
2
(iii) At all times keep true and correct
books, records and accounts.
3. Miscellaneous
3.1 All the covenants and agreements made by the holder of this
Note and the Company in this Note shall bind their respective
successors and assigns.
3.2 No recourse shall be had for the payment of the principal on
this Note or for any claim based hereon or otherwise in any
manner in respect hereof, against any incorporator, stockholder,
officer or director, past, present or future, of the Company or
of any predecessor corpora-tion, whether by virtue of any
constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner,
all such liability being expressly waived and released by the
acceptance hereof and as part of the consider-ation for the issue
hereof.
3.3 No course of dealing between the Company and the holder
hereof shall operate as a waiver of any right of any holder
hereof, and no delay on the part of the holder in exercising any
right hereunder shall so operate. Any such waiver must be in
writing and signed by the holder hereof and the Company.
3.4 This Note may be amended only by a written instru-ment
executed by the Company and the holder hereof.
3.5 All communications provided for herein shall be sent, except
as may be otherwise specifically provided, by registered or
certified mail: if to the holder of this Note, to the address
shown on the books of the Company; and if to the Company, to:
Global Realty Development Corp , 00000 Xxxxx Xxx Xxxxxxxxx, Xxxxx
000, Xxxxx Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxx, or to
such other address as the Company may advise the holder of this
Note in writing. Notices shall be deemed given three days after
it is mailed.
3.6 The provisions of this Note shall in all respects be
construed according to, and the rights and liabilities of the
parties hereto shall in all respects be governed by, the laws of
the State of New York. This Note shall be deemed a contract made
under the laws of the State of New York and the validity of this
Note and all rights and liabilities hereunder shall be determined
under the laws of said State.
3.7 The headings of the Sections of this Note are inserted for
convenience only and shall not be deemed to constitute a part of
this Note.
3
IN WITNESS WHEREOF, Global Realty Development Corp has caused this Note to be
executed in its corporate name by an appropriate officer of the Company.
Dated: As of August 20, 2005
GLOBAL REALTY DEVELOPMENT CORP
---------------------------------
By: /s/ Xxxxx Xxxxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxxxx Xxxxx
Position:
/s/ Xxxxxxxx Xxxx
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Signature of Witness
Xxxxxxxx Xxxx
(Print) Full Name of Witness
--------------------------------
Address of Witness
